EXHIBIT 10.3
CORPORATE OFFICER EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is made between SARATOGA INTERNATIONAL HOLDINGS CORP.
as Employer and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as an officer of SARATOGA INTERNATIONAL
HOLDINGS CORP., effective October 1, 1999. The terms and conditions of this
Agreement are stated below.
I. EMPLOYMENT PROVISION.
1) Employment Positions; Responsibility, Duties and Authority. This
Corporate Officer Employment Agreement is made and entered into
between SARATOGA INTERNATIONAL HOLDINGS CORP. a corporation organized
under the laws of the State of Nevada, hereinafter referred to as
"Corporation" or "Employer" and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and
Chief Executive Officer of the Corporation, hereinafter referred to as
"▇▇▇▇▇▇▇" or "Employee" The Corporation and ▇▇▇▇▇▇▇ each agree that
the Corporation shall employ ▇▇▇▇▇▇▇ as the President and Chief
Executive Officer and ▇▇▇▇▇▇▇ shall perform the responsibilities and
duties of, and shall have the full authority of the officer position
of President and Chief Executive Officer of the Corporation for the
term stated in Section II. of this Agreement, unless sooner terminated
pursuant to the provisions of Section VIII. of this Agreement.
2) Responsibilities, Duties and Authority of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ shall have
such responsibilities and duties and authority as determined from time
to time by the Board of Directors of the Corporation, as provided in
the corporate bylaws.
II. TERM OF THIS AGREEMENT
This Agreement shall have a term of three (3) years beginning October 1,
1999, and shall end September 30, 2002, unless sooner terminated pursuant
to the provisions of Section VIII. of this Agreement.
III. ALLOCATION OF TIME
▇▇▇▇▇▇▇ shall devote as much time, in his judgement, as necessary to
perform his duties and responsibilities described in Section I(2) of this
Agreement. ▇▇▇▇▇▇▇ ▇▇▇ engage for his own account, or for the account of
others, in other business ventures for which the Corporation shall not be
entitled to any interest.
IV. COMPENSATION.
1) Basic Salary. As consideration for all services to be rendered by
▇▇▇▇▇▇▇ to the Corporation, ▇▇▇▇▇▇▇ shall be paid the following listed
annual salary amounts per year as follows:
First Year -- 10/01/99 - 09/30/00 -- $150,000.00
Second Year -- 10/01/00 - 09/30/01 -- $175,000.00
Third Year -- 10/01/01 - 09/30/02 -- $200,000.00
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2) Regular Annual Bonuses. Each year ▇▇▇▇▇▇▇ shall be entitled to an
annual bonus based on cash flow from operations of the Corporation and
its subsidiaries at the end of each fiscal year before deduction of
corporate income taxes as determined by Generally Accepted Accounting
Principles ("GAAP") for the fiscal years ending October 31, 2000,
October 31, 2001 and October 31, 2002 even though the bonus due
October 31, 2002 shall come one month after expiration of this
Agreement. The bonus shall be calculated as follows:
Bonus % Applicable
Pre-Tax Operating To Each Layer or
Cash Flow Portion Thereof
First $250,000 5%
Next $250,000 4%
Next $250,000 3%
Next $250,000 2%
Amounts over $1 million 1%
In the event this Agreement is terminated as provided for in Section
VIII of this Agreement "Termination of ▇▇▇▇▇▇▇' Employment", ▇▇▇▇▇▇▇
shall be entitled to a bonus through the Effective Date of ▇▇▇▇▇▇▇'
Employment Termination as defined in Section VIII (3) of this
Agreement. Such "Termination Bonus" shall be calculated on the same
basis as outlined in Section IV (2) of this Agreement and shall be due
and payable on the Effective Date of ▇▇▇▇▇▇▇' Employment Termination
as set forth in Section VIII (3) of this Agreement.
3) Payments of Salary and Bonuses.
A. Salary. The annual salary provided for in Section IV (1) shall be
due and payable in monthly installments by the Corporation at the
beginning of each month on the first business day of each month,
which shall be established by this Agreement as the regular
payday.
B. Bonus. The annual bonus provided for in Section IV(2) shall be
due and owing as of the last day of the Corporate fiscal year and
shall be payable within forty-five (45) days from the last day of
the corporate fiscal year.
C. Accruals of Unpaid Salary and Bonuses--When Paid.
(1) Salaries. In the event the Corporation's cash position is
insufficient to pay salary and bonuses when due under this
Agreement, any salary payments and bonus payments not paid
by the Corporation when due shall accrue as a corporate debt
payable to ▇▇▇▇▇▇▇, and shall be paid as soon as possible by
the Corporation and in any event, accrued salary shall be
paid to the fullest extent possible whenever a payroll is
disbursed to other employees of the Corporation.
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(2) Bonuses. Any bonus not paid when due shall accrue as a
corporate debt payable to ▇▇▇▇▇▇▇ and shall be paid to the
fullest extent possible whenever any bonus is disbursed to
other employees of the Corporation.
(3) Deductions From Compensation. Corporation shall have the
right and responsibility to deduct all federal, state and
local government taxes and other charges as are now in
effect, if any, or which may hereafter be enacted or
required by applicable government laws and regulations, if
any, required as deductions from compensation of ▇▇▇▇▇▇▇ as
an employee.
(4) Stock as Payment. ▇▇▇▇▇▇▇ ▇▇▇ elect in his absolute
discretion, to receive common shares of the Corporation in
payment of salary amounts, in excess of $10,000 each month
and/or for any salary payments and bonus payments not paid
by the Corporation when due and accrued as a corporate debt
payable to ▇▇▇▇▇▇▇ as described in Section IV (3) C (1) and
(2) of this Agreement. The value of any shares issued by the
Corporation under this provision of this Agreement shall be
based on the closing bid price of the common shares as
reported on the OTC Bulletin Board on the date the
Corporation receives notice from ▇▇▇▇▇▇▇. In the event the
Corporation issues restricted shares under this provision
such published per share trade price shall be discounted
forty percent (40%).
(5) Past Due unpaid Salary and Bonuses. ▇▇▇▇▇▇▇ and the
Corporation agree to negotiate in good faith settlement of
any accrued unpaid salary and bonuses provided for in
Section IV (3) C (1) and (2) of this Agreement. ▇▇▇▇▇▇▇ and
the Corporation further agree that any salary and bonus
payments due and unpaid which remain unpaid for a period of
120 days from the date such payment was due, without a
settlement mutually agreeable to the parties, shall
constitute a breach of this Agreement. Remedies available in
the event of Breach of this Agreement are set forth in
Section XIII of this Agreement.
V. EMPLOYMENT BENEFITS IN ADDITION TO COMPENSATION.
1) Participation In Existing Company Benefit Programs.
A. Medical and Health Care Benefit Program. ▇▇▇▇▇▇▇, as an executive
employee shall be entitled to receive and shall receive all
medical and health care benefits provided by Employer to its
executive employees. Such benefits shall be paid for by the
Employer for ▇▇▇▇▇▇▇ and for Charles's dependents, if any, on the
terms and provisions provided in the medical and health care
benefit plan; however, if for any reason ▇▇▇▇▇▇▇ cannot qualify
for the current medical and health care benefits or if the
Corporation has no such plan, then ▇▇▇▇▇▇▇ shall be entitled to
obtain medical and health care benefits coverage from whatever
source is available and the Employer shall pay the premium
charges for that coverage as an executive employee benefit for
▇▇▇▇▇▇▇.
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B. Life Insurance. The corporation shall provide and pay for life
insurance on the life of ▇▇▇▇▇▇▇ in the amount of $1 million. The
beneficiary shall be ▇▇▇▇▇▇▇' estate, unless otherwise directed
by ▇▇▇▇▇▇▇ in writing at any time prior to his death.
C. Vacation and Holiday Benefits. ▇▇▇▇▇▇▇ shall be entitled to have
a paid vacation for forty-five (45) days each calendar year; plus
all paid holidays observed by the Employer. ▇▇▇▇▇▇▇ shall use
reasonable care in scheduling the vacation time so as to not
interfere unreasonably with Employer's business, and ▇▇▇▇▇▇▇'
performance of his responsibilities and duties.
2) Stock Options. The Corporation hereby grants ▇▇▇▇▇▇▇ the option to
purchase up to 500,000 common shares of the Corporation's capital
stock at $0.20 per share exercisable at any time and expiring five
years from the effective date of this Agreement. These options shall
not be cancelled in the event this Employment Agreement expires or is
otherwise terminated. This provision shall survive the term of this
Agreement. Except as otherwise provided herein, these stock options
shall be governed by the terms and conditions set forth in the
Corporation's Stock Incentive Plan.
3) Membership in Social and Athletic Club. ▇▇▇▇▇▇▇ shall be entitled to
membership in the Washington Athletic Club ("WAC") or other club
comparable to that of the WAC during the term of this Agreement. The
Corporation shall pay all regular dues. Other charges to the account
shall be paid to the extent that such charges relate to athletic
and/or exercise programs designed to maintain or improve the
well-being of ▇▇▇▇▇▇▇ and expenses such as business meetings etc.
relating to Charles's performance as an officer of the Corporation.
4) Participation in Other Employment Benefits. ▇▇▇▇▇▇▇ shall be entitled
to receive all other benefits and conditions of employment which may
become available to all other executives of the corporation, including
by way of illustration, but not limited to, any life insurance
benefits, any disability income continuation and any profit sharing
and any retirement income plans of any kind, whether qualified or
non-qualified, whether pre-funded or not, if any are established after
the inception date of this Agreement, and before it expires pursuant
to Section II. or sooner terminated pursuant to Section VIII. of this
Agreement
5) Death Benefit. In the event of Charles's death at a time before this
Agreement has expired under Section II., or sooner terminated under
Section VIII. of this Agreement, the Corporation shall pay to
Charles's surviving spouse a death benefit payable as the regular
payday on the same month on the same day established in Section
IV.3.A. in the full amount which would otherwise be paid to ▇▇▇▇▇▇▇ as
salary, if ▇▇▇▇▇▇▇ were living, for a period of six months beginning
with the first regular payday date after Charles's death.
VI. EXPENSE REIMBURSEMENT AND AUTOMOBILE EXPENSE ALLOWANCE.
1) Expense Reimbursement, Generally. ▇▇▇▇▇▇▇ will be reimbursed in
accordance with the Employer's company policies for traveling,
entertainment and any other expenses reasonably incurred and related
to the performance of Charles's duties and responsibilities on behalf
of Employer.
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2) Automobile Allowance Plus Expenses. In addition, ▇▇▇▇▇▇▇ shall receive
$750.00 per month for automobile expense allowance for use of his
automobile in business, plus additional reimbursement for insurance,
servicing and operation of his automobile in business. This allowance
shall be reviewed each anniversary date of this Agreement for adequacy
and shall be increased for the following year by the amount Charles's
expenses exceed the allowance, subject to approval by the
Corporation's Board of Directors.
VII. DISABILITY COMPENSATION.
1) If ▇▇▇▇▇▇▇ becomes disabled at any time, and for any number of times,
due to any cause so that he is physically unable to perform his
ordinary duties and responsibilities of President and Chief Executive
Officer, pursuant to this Agreement, for a period of thirty (30) days,
then ▇▇▇▇▇▇▇ shall be entitled to receive, in lieu of salary, an
amount equal to his salary, payable at the same time and in the same
manner as Charles's salary is paid provided however, that this benefit
shall be limited to not more than a total of six months during the
term of the Agreement, regardless of the number or duration of each
disability.
2) ▇▇▇▇▇▇▇' entitlement to disability income pursuant to this Section
VII. shall begin and end as determined by a certificate issued by a
qualified M.D. or D.O. licensed by the State of Washington to practice
in this state. The certificate shall state in substance that ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ was determined to be disabled and unable to perform the
ordinary and usual duties of' President and CEO of Saratoga
International Holdings Corp. beginning with [date] - and Charles's
disability continues as of this [date] . Such a certificate shall be
submitted every three (3) months beginning with the date of disability
and continuing thereafter until Charles's disability ends and he is
able to return to work full time or his disability compensation
benefit has been fully used, whichever occurs first.
VIII. TERMINATION OF ▇▇▇▇▇▇▇' EMPLOYMENT.
1) Termination By The Corporation. Charles's employment as President and
Chief Executive Officer may be terminated by the Board of Directors of
the Corporation with or without cause, after receipt by ▇▇▇▇▇▇▇ of
written notice received at least ninety (90) days in advance of the
employment termination date set by the Board of Directors, PROVIDED
THAT all terms and provisions of Section VIII.2., stated below are
met. Such notice ("Notice") shall be sent pursuant to Section XII.,
below. The termination of Charles's employment shall be effective as
stated in Section VIII.3., below.
2) Terms and Provisions of Termination of Charles's Employment.
Regardless of the reasons or purpose of the termination of Charles's
Employment, the Corporation shall not and may not terminate Charles's
employment as President and Chief Executive Officer unless and until
the Corporation has fully arranged for and commenced performance of
the following:
A. Offer in writing by the Corporation, approved by the Board of
Directors to purchase all shares of stock of the Corporation
directly or beneficially owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ for cash at
least thirty (30) days prior to the proposed termination date of
▇▇▇▇▇▇▇' employment, at the then existing market price based on
the average published closing trade price for the five (5)
business days prior to the date of Notice referred to in Section
VIII (1) above. ▇▇▇▇▇▇▇ ▇▇▇ elect in his absolute discretion to
waive this provision, VIII 2.) A., by notifying the Corporation
in writing.
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B. Payment, in cash, by the Corporation of all sums then due and
owing, if any, as compensation, pursuant to Section IV.,
Compensation, and/or Section VII., Disability Compensation, of
this Employment Agreement.
C. Payment, in cash, by the Corporation of all sums then due and
owing, if any, pursuant to Section VI., Reimbursement, of the
Employment Agreement.
D. Payment, in cash, by the Corporation for buyout of Remainder of
the Employment Agreement at the rate of fifty percent (50%) of
the regular salary in effect under Section IV., above, of this
Agreement.
3) Effective Date of Charles's Employment Termination, The effective date
of Charles's employment termination pursuant to Section VIII of this
Agreement shall be the latest of the following dates:
A. The date of Charles's employment termination provided for in the
written notice of his employment termination;
B. The Ninety-first (91st) day after receipt by ▇▇▇▇▇▇▇ of the
written notice of his employment termination;
C. The date of fulfillment of all the terms and provisions of Part
VIII. (2)., above, entitled Terms and Provisions of Termination
of Charles's Employment by the Corporation.
IX. PROPERTY RIGHTS
1) Intellectual Property Rights. All rights, title and interest of every
kind and nature whatsoever, in and to any intellectual property,
including any inventions, patents, trademarks, copyrights, films,
scripts, ideas, creations and properties invented, created, written,
developed, furnished, produced or disclosed by ▇▇▇▇▇▇▇ in the course
of rendering his services to the Corporation under this Agreement
shall, as between the parties hereto, be and remain the sole and
exclusive property of the Corporation for any and all purposes and
uses whatsoever, and ▇▇▇▇▇▇▇ shall have no right, title or interest of
any kind or nature therein or thereto, or in and to any results and
proceeds therefrom.
2) Return of All of the Corporation's Property. Upon termination of this
Agreement, regardless of how termination may be effected or whenever
requested by the Corporation, ▇▇▇▇▇▇▇ shall immediately turn over to
the Corporation all of the Corporation's property, including all items
used by ▇▇▇▇▇▇▇ in rendering services hereunder or otherwise, that may
be in Charles's possession or under his control.
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X. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
1) During Employment. ▇▇▇▇▇▇▇ agrees that during the entire term of his
employment as an executive officer by this Corporation, he will not
disclose to any other person, partnership, company or corporation any
confidential information about this Corporation or its related
corporations, or the business activities or interests of this
Corporation or its related corporations, including, but not limited
to, the following which is agreed as between the parties to be
confidential information: customer data, customer lists, sales
figures, sales projections, estimates of any kind, sales proposals,
price lists, accounting procedures, any and all accounting records,
any technology and applications of technology, developed by the
Corporation before or during his employment, EXCEPT such disclosure as
is for the benefit of or the furthering of the intent of the
Corporation, or is expressly disclosed as part of the performance of
his duties and responsibilities as President and Chief Executive
Officer.
2) Surrender of All Confidential Information On Termination of
Employment. ▇▇▇▇▇▇▇ agrees at the time his employment with the
Corporation terminates, to turn over to the Corporation any and all
confidential information which may be in his possession, including any
and all copies thereof, except that one copy of such information may
be retained in ▇▇▇▇▇▇▇' confidential legal files for record keeping
purposes only.
3) Following Termination of Employment. ▇▇▇▇▇▇▇ agrees that following the
termination of his employment with the Corporation, he will not
disclose any confidential information, as described in Section X.(1.),
above, which he obtained about the Corporation at any time or for any
purpose.
XI. NON-COMPETITION AFTER TERMINATION OF EMPLOYMENT.
1) Non-Competition Period--Duration and Geographic Scope. ▇▇▇▇▇▇▇ and the
Corporation recognize and acknowledge that in his employment as
President and Chief Executive Officer, he will become familiar with
all of the Corporation's products and all of the geographic areas
throughout the United States and Canada in which the Corporation
already has made marketing efforts and sales of products and services,
and he will become knowledgeable about present and future marketing
proposals and plans for those products and services in those
geographic areas. ▇▇▇▇▇▇▇ agrees, as part of the consideration for
this Employment Agreement that ▇▇▇▇▇▇▇ will not engage directly or
indirectly in the business of manufacture or sale of any products or
services which compete with the products or services provided by the
Corporation or its related corporations for a period of two (2) years
within the geographic limits of any state of the United States, or any
province of Canada. The parties agree that the phrase "engage directly
or indirectly in the business of manufacture or sale of any products
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or services which compete with the products or services of the
Corporation or its related Corporations" shall include any situation
or circumstance in which ▇▇▇▇▇▇▇ shall be owner, partner, officer,
director or shareholder of a corporation, or agent or employee or
consultant of any business entity engaged or about to become engaged
in competition with the Corporation.
2) Injunctive Relief From Competition By ▇▇▇▇▇▇▇. The parties agree
that if ▇▇▇▇▇▇▇ were to violate the provisions of Section XI. 1.,
above, the use by ▇▇▇▇▇▇▇ of the information he learned while employed
by the Corporation could enable him to engage in basically unfair
competition with the Corporation and its related corporations, and
that such competition in violation of Section XI.(1.), above, probably
would cause irreparable harm to the marketing and sales success of the
Corporation and its related corporations. Therefore, if ▇▇▇▇▇▇▇
violates Section XI. (1.), above, the Corporation shall be entitled to
obtain a temporary restraining order without delay, and proceed to
obtain a preliminary injunction and permanent injunction against such
violations by ▇▇▇▇▇▇▇ and any person, partnership, company or
corporation through which or for which he acts, directly or indirectly
to violate Section XI.(1.), above.
XII. NOTICES.
1) How Sent or Delivered. Any notices sent by any party which is intended
to give written notice required by this Employment Agreement shall be
sent or delivered by sender to the intended recipient by one or more
of the following methods:
A. By certified mail, return receipt requested, postage prepaid, to
the last known address of the intended recipient; or
B. By delivery personally to the intended recipient.
2) Effective Date of Notice. If a written notice is sent or delivered by
either of the above methods, then the effective date of the notice for
purposes of considering it to have been received by the intended
recipient shall be the earliest of the following:
A. If by certified mail, return receipt requested, which is
delivered, then or on the date the recipient, or anyone signing
for the recipient, signed the return receipt;
B. If by certified mail, return receipt requested, which is not
delivered, then on the date five business days after the date the
notice was sent;
C. If by personal delivery to the intended recipient, then on the
date the written notice was delivered personally to the
recipient.
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3) Proof of Delivery of Notice.
A. Certified Mail, Return Receipt Requested. If the written notice
was sent by certified mail, return receipt requested, proof of
sending may be shown by the U.S. Post Office receipt for the
certified mail, return receipt requested and proof of delivery
may be shown by the signed returned receipt and proof of
attempted delivery sufficient for effective date of notice
without delivery may be shown by the returned envelope with U.S.
Post Office notations showing attempted delivery dates and
notices to the intended recipient.
B. Personal Delivery. Personal delivery of a written notice may be
shown by a signature of the intended recipient on a copy of the
notice, together with the legend on the copy of the notice which
will read, "Received," with the date received noted thereafter.
Personal delivery may also be shown by a sworn statement of the
person who delivered the notice, stating that the notice was
delivered to the recipient or representative of recipient on the
date of delivery, and attaching a copy of the notice, with
reference in the sworn statement to the attached copy of the
notice.
XIII. REMEDIES AVAILABLE IN EVENT OF BREACH OF AGREEMENT; VENUE.
In the event that any party breaches this Employment Agreement, the other
party shall have the right to pursue any remedies available to the party
claiming breach, including, but not limited to damages, injunctive relief
and declaratory judgment, which may be available under the laws of the
State of Nevada. The parties agree that any claims shall be brought in the
appropriate court(s) located in ▇▇▇▇▇ County, Nevada, which may have
jurisdiction pursuant to Nevada Law.
XIV. This Employment Agreement shall be construed and interpreted and
enforceable pursuant to the laws of the State of Nevada.
XV. ENTIRE AGREEMENT.
This Employment Agreement states the entire agreement between the parties
with respect to the employment of ▇▇▇▇▇▇▇ by the Corporation. This
Agreement cannot be modified by any oral agreement or course of conduct by
either or both parties and any attempt at such modification shall be null
and void. This Agreement may be modified only by a written document signed
by each party.
Effective this 1st day of October 1999.
EXECUTIVE OFFICER:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE CORPORATION:
Saratoga International Holdings Corp.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Exec. V.P.
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I certify that I know or have satisfactory evidence
that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is the person who appeared before me, and said
person acknowledged that he/she signed this instrument and acknowledged it to be
his/her free and voluntary act for the uses and purposes mentioned in
instrument.
DATED: November 24, 1999
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - Notary Public
My commission expires: 6/16/03
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CORPORATE OFFICER EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is made between SARATOGA INTERNATIONAL HOLDINGS CORP.
as Employer and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as an officer of SARATOGA INTERNATIONAL
HOLDINGS CORP., effective October 1, 1999. The terms and conditions of this
Agreement are stated below.
I. EMPLOYMENT PROVISION.
1) Employment Positions; Responsibility, Duties and Authority. This
Corporate Officer Employment Agreement is made and entered into
between SARATOGA INTERNATIONAL HOLDINGS CORP. a corporation organized
under the laws of the State of Nevada, hereinafter referred to as
"Corporation" or "Employer" and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive
Vice-President and Chief Operating Officer of the Corporation,
hereinafter referred to as "▇▇▇▇▇▇" or "Employee" The Corporation and
▇▇▇▇▇▇ each agree that the Corporation shall employ ▇▇▇▇▇▇ as the
Executive Vice President and Chief Operating Officer and ▇▇▇▇▇▇ shall
perform the responsibilities and duties of, and shall have the full
authority of the officer position of Executive Vice-President and
Chief Operating Officer of the Corporation for the term stated in
Section II. of this Agreement, unless sooner terminated pursuant to
the provisions of Section VIII. of this Agreement.
2) Responsibilities, Duties and Authority of ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall have
such responsibilities and duties and authority as determined from time
to time by the Board of Directors of the Corporation, as provided in
the corporate bylaws.
II. TERM OF THIS AGREEMENT
This Agreement shall have a term of three (3) years beginning October 1,
1999, and shall end September 30, 2002, unless sooner terminated pursuant
to the provisions of Section VIII. of this Agreement.
III. ALLOCATION OF TIME
▇▇▇▇▇▇ shall devote as much time, in his judgement, as necessary to perform
his duties and responsibilities described in Section I(2) of this
Agreement. ▇▇▇▇▇▇ may engage for his own account, or for the account of
others, in other business ventures for which the Corporation shall not be
entitled to any interest.
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IV. COMPENSATION.
1) Basic Salary. As consideration for all services to be rendered by
▇▇▇▇▇▇ to the Corporation, ▇▇▇▇▇▇ shall be paid the following listed
annual salary amounts per year as follows:
First Year -- 10/01/99 - 09/30/00 -- $150,000.00
Second Year -- 10/01/00 - 09/30/01 -- $175,000.00
Third Year -- 10/01/01 - 09/30/02 -- $200,000.00
2) Regular Annual Bonuses. Each year ▇▇▇▇▇▇ shall be entitled to an
annual bonus based on cash flow from operations of the Corporation and
its subsidiaries at the end of each fiscal year before deduction of
corporate income taxes as determined by Generally Accepted Accounting
Principles ("GAAP") for the fiscal years ending October 31, 2000,
October 31, 2001 and October 31, 2002 even though the bonus due
October 31, 2002 shall come one month after expiration of this
Agreement. The bonus shall be calculated as follows:
Bonus % Applicable
Pre-Tax Operating To Each Layer or
Cash Flow Portion Thereof
First $250,000 5%
Next $250,000 4%
Next $250,000 3%
Next $250,000 2%
Amounts over $1 million 1%
In the event this Agreement is terminated as provided for in Section
VIII of this Agreement "Termination of ▇▇▇▇▇▇'▇ Employment", ▇▇▇▇▇▇
shall be entitled to a bonus through the Effective Date of ▇▇▇▇▇▇'▇
Employment Termination as defined in Section VIII (3) of this
Agreement. Such "Termination Bonus" shall be calculated on the same
basis as outlined in Section IV (2) of this Agreement and shall be due
and payable on the Effective Date of ▇▇▇▇▇▇'▇ Employment Termination
as set forth in Section VIII (3) of this Agreement.
3.) Payments of Salary and Bonuses.
A. Salary. The annual salary provided for in Section IV (1) shall be
due and payable in monthly installments by the Corporation at the
beginning of each month on the first business day of each month,
which shall be established by this Agreement as the regular
payday.
B. Bonus. The annual bonus provided for in Section IV(2) shall be
due and owing as of the last day of the Corporate fiscal year and
shall be payable within forty-five (45) days from the last day of
the corporate fiscal year.
C. Accruals of Unpaid Salary and Bonuses--When Paid.
(1.) Salaries. In the event the Corporation's cash position is
insufficient to pay salary and bonuses when due under this
Agreement, any salary payments and bonus payments not paid
by the Corporation when due shall accrue as a corporate debt
payable to ▇▇▇▇▇▇, and shall be paid as soon as possible by
the Corporation and in any event, accrued salary shall be
paid to the fullest extent possible whenever a payroll is
disbursed to other employees of the Corporation.
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(2.) Bonuses. Any bonus not paid when due shall accrue as a
corporate debt payable to ▇▇▇▇▇▇ and shall be paid to the
fullest extent possible whenever any bonus is disbursed to
other employees of the Corporation.
(3.) Deductions From Compensation. Corporation shall have the
right and responsibility to deduct all federal, state and
local government taxes and other charges as are now in
effect, if any, or which may hereafter be enacted or
required by applicable government laws and regulations, if
any, required as deductions from compensation of ▇▇▇▇▇▇ as
an employee.
(4.) Stock as Payment. ▇▇▇▇▇▇ may elect in his absolute
discretion, to receive common shares of the Corporation in
payment of salary amounts, in excess of $10,000 each month
and/or for any salary payments and bonus payments not paid
by the Corporation when due and accrued as a corporate debt
payable to ▇▇▇▇▇▇ as described in Section IV (3) C (1) and
(2) of this Agreement. The value of any shares issued by the
Corporation under this provision of this Agreement shall be
based on the closing bid price of the common shares as
reported on the OTC Bulletin Board on the date the
Corporation receives notice from ▇▇▇▇▇▇. In the event the
Corporation issues restricted shares under this provision,
such published per share trade price shall be discounted
forty percent (40%).
(5.) Past Due unpaid Salary and Bonuses. ▇▇▇▇▇▇ and the
Corporation agree to negotiate in good faith settlement of
any accrued unpaid salary and bonuses provided for in
Section IV (3) C (1) and (2) of this Agreement. ▇▇▇▇▇▇ and
the Corporation further agree that any salary and bonus
payments due and unpaid which remain unpaid for a period of
120 days from the date such payment was due, without a
settlement mutually agreeable to the parties, shall
constitute a breach of this Agreement. Remedies available in
the event of Breach of this Agreement are set forth in
Section XIII of this Agreement.
V. EMPLOYMENT BENEFITS IN ADDITION TO COMPENSATION.
1.) Participation In Existing Company Benefit Programs.
A. Medical and Health Care Benefit Program. ▇▇▇▇▇▇, as an executive
employee shall be entitled to receive and shall receive all
medical and health care benefits provided by Employer to its
executive employees. Such benefits shall be paid for by the
Employer for ▇▇▇▇▇▇ and for ▇▇▇▇▇▇'▇ dependents, if any, on the
terms and provisions provided in the medical and health care
benefit plan; however, if for any reason ▇▇▇▇▇▇ cannot qualify
for the current medical and health care benefits or if the
Corporation has no such plan, then ▇▇▇▇▇▇ shall be entitled to
obtain medical and health care benefits coverage from whatever
source is available and the Employer shall pay the premium
charges for that coverage as an executive employee benefit for
▇▇▇▇▇▇.
B. Life Insurance. The corporation shall provide and pay for life
insurance on the life of ▇▇▇▇▇▇ in the amount of $500,000. The
beneficiary shall be ▇▇▇▇▇▇'▇ estate, unless otherwise directed
by ▇▇▇▇▇▇ in writing at any time prior to his death.
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C. Vacation and Holiday Benefits. ▇▇▇▇▇▇ shall be entitled to have a
paid vacation for forty-five (45) days each calendar year; plus
all paid holidays observed by the Employer. ▇▇▇▇▇▇ shall use
reasonable care in scheduling the vacation time so as to not
interfere unreasonably with Employer's business, and ▇▇▇▇▇▇'▇
performance of his responsibilities and duties.
2.) Stock Options. The Corporation hereby grants ▇▇▇▇▇▇ the option to
purchase up to 500,000 common shares of the Corporation's capital
stock at $0.20 per share exercisable at any time and expiring five
years from the effective date of this Agreement. These options shall
not be cancelled in the event this Employment Agreement expires or is
otherwise terminated. This provision shall survive the term of this
Agreement. Except as otherwise provided herein, these stock options
shall be governed by the terms and conditions set forth in the
Corporation's Stock Incentive Plan.
3.) Membership in Social and Athletic Club. ▇▇▇▇▇▇ shall be entitled to
membership in the Bellevue Club or other club comparable to that of
the Bellevue Club during the term of this Agreement. The Corporation
shall pay all regular dues. Other charges to the account shall be paid
to the extent that such charges relate to athletic and/or exercise
programs designed to maintain or improve the well-being of ▇▇▇▇▇▇ and
expenses such as business meetings etc. relating to ▇▇▇▇▇▇'▇
performance as an officer of the Corporation.
4.) Participation in Other Employment Benefits. ▇▇▇▇▇▇ shall be entitled
to receive all other benefits and conditions of employment which may
become available to all other executives of the corporation, including
by way of illustration, but not limited to, any life insurance
benefits, any disability income continuation and any profit sharing
and any retirement income plans of any kind, whether qualified or
non-qualified, whether pre-funded or not, if any are established after
the inception date of this Agreement, and before it expires pursuant
to Section II. or sooner terminated pursuant to Section VIII. of this
Agreement
5.) Death Benefit. In the event of ▇▇▇▇▇▇'▇ death at a time before this
Agreement has expired under Section II., or sooner terminated under
Section VIII. of this Agreement, the Corporation shall pay to ▇▇▇▇▇▇'▇
surviving spouse or estate a death benefit payable as the regular
payday on the same month on the same day established in Section
IV.3.A. in the full amount which would otherwise be paid to ▇▇▇▇▇▇ as
salary, if ▇▇▇▇▇▇ were living, for a period of six months beginning
with the first regular payday date after ▇▇▇▇▇▇'▇ death.
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VI. EXPENSE REIMBURSEMENT AND AUTOMOBILE EXPENSE ALLOWANCE.
1.) Expense Reimbursement, Generally. ▇▇▇▇▇▇ will be reimbursed in
accordance with the Employer's company policies for traveling,
entertainment and any other expenses reasonably incurred and related
to the performance of ▇▇▇▇▇▇'▇ duties and responsibilities on behalf
of Employer.
2.) Automobile Allowance Plus Expenses. In addition, ▇▇▇▇▇▇ shall receive
$750.00 per month for automobile expense allowance for use of his
automobile in business, plus additional reimbursement for insurance,
servicing and operation of his automobile in business. This allowance
shall be reviewed each anniversary date of this Agreement for adequacy
and shall be increased for the following year by the amount ▇▇▇▇▇▇'▇
expenses exceed the allowance, subject to approval by the
Corporation's Board of Directors.
VII. DISABILITY COMPENSATION.
1.) If ▇▇▇▇▇▇ becomes disabled at any time, and for any number of times,
due to any cause so that he is physically unable to perform his
ordinary duties and responsibilities of Executive Vice-President and
Chief Operating Officer, pursuant to this Agreement, for a period of
thirty (30) days, then ▇▇▇▇▇▇ shall be entitled to receive, in lieu of
salary, an amount equal to his salary, payable at the same time and in
the same manner as ▇▇▇▇▇▇'▇ salary is paid provided however, that this
benefit shall be limited to not more than a total of six months during
the term of the Agreement, regardless of the number or duration of
each disability.
2.) ▇▇▇▇▇▇'▇ entitlement to disability income pursuant to this Section
VII. shall begin and end as determined by a certificate issued by a
qualified M.D. or D.O. licensed by the State of Washington to practice
in this state. The certificate shall state in substance that ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ was determined to be disabled and unable to perform the
ordinary and usual duties of' Executive Vice-President and Chief
Operating Officer of Saratoga International Holdings Corp. beginning
with [date] - and ▇▇▇▇▇▇'▇ disability continues as of this [date] .
Such a certificate shall be submitted every three (3) months beginning
with the date of disability and continuing thereafter until ▇▇▇▇▇▇'▇
disability ends and he is able to return to work full time or his
disability compensation benefit has been fully used, whichever occurs
first.
VIII. TERMINATION OF ▇▇▇▇▇▇'▇ EMPLOYMENT.
1.) Termination By The Corporation. ▇▇▇▇▇▇'▇ employment as Executive
Vice-President and Chief Operating Officer may be terminated by the
Board of Directors of the Corporation with or without cause, after
receipt by ▇▇▇▇▇▇ of written notice received at least ninety (90) days
in advance of the employment termination date set by the Board of
Directors, PROVIDED THAT all terms and provisions of Section VIII.2.,
stated below are met. Such notice ("Notice") shall be sent pursuant to
Section XII., below. The termination of ▇▇▇▇▇▇'▇ employment shall be
effective as stated in Section VIII.3., below.
2.) Terms and Provisions of Termination of ▇▇▇▇▇▇'▇ Employment. Regardless
of the reasons or purpose of the termination of ▇▇▇▇▇▇'▇ Employment,
the Corporation shall not and may not terminate ▇▇▇▇▇▇'▇ employment as
Executive Vice-President and Chief Operating Officer unless and until
the Corporation has fully arranged for and commenced performance of
the following:
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180
A. Offer in writing by the Corporation, approved by the Board of
Directors to purchase all shares of stock of the Corporation
directly or beneficially owned by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for cash at
least thirty (30) days prior to the proposed termination date of
▇▇▇▇▇▇'▇ employment, at the then existing market price based on
the average published closing trade price for the five (5)
business days prior to the date of Notice referred to in Section
VIII (1) above. ▇▇▇▇▇▇ may elect in his absolute discretion to
waive this provision, VIII 2.) A., by notifying the Corporation
in writing.
B. Payment, in cash, by the Corporation of all sums then due and
owing, if any, as compensation, pursuant to Section IV.,
Compensation, and/or Section VII., Disability Compensation, of
this Employment Agreement.
C. Payment, in cash, by the Corporation of all sums then due and
owing, if any, pursuant to Section VI., Reimbursement, of the
Employment Agreement.
D. Payment, in cash, by the Corporation for buyout of Remainder of
the Employment Agreement at the rate of fifty percent (50%) of
the regular salary in effect under Section IV., above, of this
Agreement.
3.) Effective Date of ▇▇▇▇▇▇'▇ Employment Termination, The effective date
of ▇▇▇▇▇▇'▇ employment termination pursuant to Section VIII of this
Agreement shall be the latest of the following dates:
A. The date of ▇▇▇▇▇▇'▇ employment termination provided for in the
written notice of his employment termination;
B. The Ninety-first (91st) day after receipt by ▇▇▇▇▇▇ of the
written notice of his employment termination;
C. The date of fulfillment of all the terms and provisions of Part
VIII. (2)., above, entitled Terms and Provisions of Termination
of ▇▇▇▇▇▇'▇ Employment by the Corporation.
IX. PROPERTY RIGHTS
1.) Intellectual Property Rights. All rights, title and interest of every
kind and nature whatsoever, in and to any intellectual property,
including any inventions, patents, trademarks, copyrights, films,
scripts, ideas, creations and properties invented, created, written,
developed, furnished, produced or disclosed by ▇▇▇▇▇▇ in the course of
rendering his services to the Corporation under this Agreement shall,
as between the parties hereto, be and remain the sole and exclusive
property of the Corporation for any and all purposes and uses
whatsoever, and ▇▇▇▇▇▇ shall have no right, title or interest of any
kind or nature therein or thereto, or in and to any results and
proceeds therefrom.
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2.) Return of All of the Corporation's Property. Upon termination of this
Agreement, regardless of how termination may be effected or whenever
requested by the Corporation, ▇▇▇▇▇▇ shall immediately turn over to
the Corporation all of the Corporation's property, including all items
used by ▇▇▇▇▇▇ in rendering services hereunder or otherwise, that may
be in ▇▇▇▇▇▇'▇ possession or under his control.
X. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
1.) During Employment. ▇▇▇▇▇▇ agrees that during the entire term of his
employment as an executive officer by this Corporation, he will not
disclose to any other person, partnership, company or corporation any
confidential information about this Corporation or its related
corporations, or the business activities or interests of this
Corporation or its related corporations, including, but not limited
to, the following which is agreed as between the parties to be
confidential information: customer data, customer lists, sales
figures, sales projections, estimates of any kind, sales proposals,
price lists, accounting procedures, any and all accounting records,
any technology and applications of technology, developed by the
Corporation before or during his employment, EXCEPT such disclosure as
is for the benefit of or the furthering of the intent of the
Corporation, or is expressly disclosed as part of the performance of
his duties and responsibilities as Executive Vice-President and Chief
Operating Officer.
2.) Surrender of All Confidential Information On Termination of
Employment. ▇▇▇▇▇▇ agrees at the time his employment with the
Corporation terminates, to turn over to the Corporation any and all
confidential information which may be in his possession, including any
and all copies thereof, except that one copy of such information may
be retained in ▇▇▇▇▇▇'▇ confidential legal files for record keeping
purposes only.
3.) Following Termination of Employment. ▇▇▇▇▇▇ agrees that following the
termination of his employment with the Corporation, he will not
disclose any confidential information, as described in Section
X.(1.)., above, which he obtained about the Corporation at any time or
for any purpose.
XI. NON-COMPETITION AFTER TERMINATION OF EMPLOYMENT.
1.) Non-Competition Period--Duration and Geographic Scope. ▇▇▇▇▇▇ and the
Corporation recognize and acknowledge that in his employment as
Executive Vice-President and Chief Operating Officer, he will become
familiar with all of the Corporation's products and all of the
geographic areas throughout the United States and Canada in which the
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Corporation already has made marketing efforts and sales of products
and services, and he will become knowledgeable about present and
future marketing proposals and plans for those products and services
in those geographic areas. ▇▇▇▇▇▇ agrees, as part of the consideration
for this Employment Agreement that ▇▇▇▇▇▇ will not engage directly or
indirectly in the business of manufacture or sale of any products or
services which compete with the products or services provided by the
Corporation or its related corporations for a period of two (2) years
within the geographic limits of any state of the United States, or any
province of Canada. The parties agree that the phrase "engage directly
or indirectly in the business of manufacture or sale of any products
or services which compete with the products or services of the
Corporation or its related Corporations" shall include any situation
or circumstance in which ▇▇▇▇▇▇ shall be owner, partner, officer,
director or shareholder of a corporation, or agent or employee or
consultant of any business entity engaged or about to become engaged
in competition with the Corporation.
2.) Injunctive Relief From Competition By ▇▇▇▇▇▇. The parties agree that
if ▇▇▇▇▇▇ were to violate the provisions of Section XI. 1., above, the
use by ▇▇▇▇▇▇ of the information he learned while employed by the
Corporation could enable him to engage in basically unfair competition
with the Corporation and its related corporations, and that such
competition in violation of Section XI. (1.), above, probably would
cause irreparable harm to the marketing and sales success of the
Corporation and its related corporations. Therefore, if ▇▇▇▇▇▇
violates Section XI. 1., above, the Corporation shall be entitled to
obtain a temporary restraining order without delay, and proceed to
obtain a preliminary injunction and permanent injunction against such
violations by ▇▇▇▇▇▇ and any person, partnership, company or
corporation through which or for which he acts, directly or indirectly
to violate Section XI. (1.), above.
XII. NOTICES.
1.) How Sent or Delivered. Any notices sent by any party which is intended
to give written notice required by this Employment Agreement shall be
sent or delivered by sender to the intended recipient by one or more
of the following methods:
A. By certified mail, return receipt requested, postage prepaid, to
the last known address of the intended recipient; or
B. By delivery personally to the intended recipient.
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2.) Effective Date of Notice. If a written notice is sent or delivered by
either of the above methods, then the effective date of the notice for
purposes of considering it to have been received by the intended
recipient shall be the earliest of the following:
A. If by certified mail, return receipt requested, which is
delivered, then or on the date the recipient, or anyone signing
for the recipient, signed the return receipt;
B. If by certified mail, return receipt requested, which is not
delivered, then on the date five business days after the date the
notice was sent;
C. If by personal delivery to the intended recipient, then on the
date the written notice was delivered personally to the
recipient.
3.) Proof of Delivery of Notice.
A. Certified Mail, Return Receipt Requested. If the written notice
was sent by certified mail, return receipt requested, proof of
sending may be shown by the U.S. Post Office receipt for the
certified mail, return receipt requested and proof of delivery
may be shown by the signed returned receipt and proof of
attempted delivery sufficient for effective date of notice
without delivery may be shown by the returned envelope with U.S.
Post Office notations showing attempted delivery dates and
notices to the intended recipient.
B. Personal Delivery. Personal delivery of a written notice may be
shown by a signature of the intended recipient on a copy of the
notice, together with the legend on the copy of the notice which
will read, "Received," with the date received noted thereafter.
Personal delivery may also be shown by a sworn statement of the
person who delivered the notice, stating that the notice was
delivered to the recipient or representative of recipient on the
date of delivery, and attaching a copy of the notice, with
reference in the sworn statement to the attached copy of the
notice.
XIII.REMEDIES AVAILABLE IN EVENT OF BREACH OF AGREEMENT; VENUE.
In the event that any party breaches this Employment Agreement, the other party
shall have the right to pursue any remedies available to the party claiming
breach, including, but not limited to damages, injunctive relief and declaratory
judgment, which may be available under the laws of the State of Nevada. The
parties agree that any claims shall be brought in the appropriate court(s)
located in ▇▇▇▇▇ County, Nevada, which may have jurisdiction pursuant to Nevada
Law.
XIV. APPLICABLE LAW
This Employment Agreement shall be construed and interpreted and enforceable
pursuant to the laws of the State of Nevada.
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XV. ENTIRE AGREEMENT.
This Employment Agreement states the entire agreement between the parties with
respect to the employment of ▇▇▇▇▇▇ by the Corporation. This Agreement cannot be
modified by any oral agreement or course of conduct by either or both parties
and any attempt at such modification shall be null and void. This Agreement may
be modified only by a written document signed by each party.
Effective this 1st day of October 1999.
EXECUTIVE OFFICER:
/s/ ▇ ▇ ▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
THE CORPORATION:
Saratoga International Holdings Corp.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
I certify that I know or have satisfactory evidence that ▇▇▇▇▇ ▇▇▇▇▇▇
is the person who appeared before me, and said person acknowledged that he/she
signed this instrument and acknowledged it to be his/her free and voluntary act
for the uses and purposes mentioned in instrument.
DATED: November 24, 1999
-----------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - Notary Public
My commission expires: 6/15/03
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